PROPOSED RULES
Original Notice.
Preproposal statement of inquiry was filed as WSR 08-15-021.
Title of Rule and Other Identifying Information: Upper Kittitas ground water rule, chapter 173-539A WAC.
Hearing Location(s): Walter Strom Middle School, Multipurpose Room, 2694 State Route 903, Cle Elum, WA, on July 28, 2010, at 5:00 p.m.
Date of Intended Adoption: October 15, 2010.
Submit Written Comments to: Mark Schuppe, Department of Ecology, Central Regional Office, 15 West Yakima Avenue, Suite 200, Yakima, WA 98902-3452, e-mail msch461@ecy.wa.gov, fax (509) 575-2809, by August 11, 2010.
Assistance for Persons with Disabilities: Contact Judy Beitel by July 21, 2010. Persons with hearing loss, call 711 for Washington relay service. Persons with a speech disability, call (877) 833-6341.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The proposed upper Kittitas ground water rule (chapter 173-539A WAC) is based on comments received in response to a rule proposed by ecology in January 2009, and ongoing communications regarding the emergency rules now in effect since July 2009. These communications have been with the general public, Kittitas County Board of Commissioners, United States Bureau of Reclamation (USBR), Yakama Nation, Roza Irrigation District, Kittitas Reclamation District, Town of Roslyn, Center for Environmental Law Policy/Aqua Permanente, and other water right holders in the basin. In addition, in a letter dated April 6, 2010, Governor Gregoire directed ecology to immediately begin permanent rule making as required under the Administrative Procedure Act. The purpose of this rule is to withdraw from appropriation all unappropriated ground water within upper Kittitas County pending the completion of a ground water study with these exceptions:
| • | Uses determined to be water budget neutral pursuant to this rule under WAC 173-539A-050; and |
| • | Uses of ground water for a structure for which a building permit application vested prior to July 16, 2009. |
The Upper Kittitas Water Exchange has been put in place. Suncadia has begun marketing one of its three available water rights for mitigation purposes. Transactions to supply water for seventy residential connections were presented to the Yakima Water Transfer Working Group on March 8, 2010. Suncadia submitted them, along with the associated permit applications, and water budget neutral request forms at the end of March 2010. The first water budget neutral requests were issued by ecology on April 30, 2010.
Reasons Supporting Proposal: The Yakima Basin is one of the state's most water-short areas. Water rights with priority dates as old as 1905 were shut off during the 2001 and 2005 droughts, and during 2004 when USBR prorated May 10, 1905, water rights. The town of Roslyn's municipal supply and another one hundred thirty-three single domestic, group domestic, and municipal water systems throughout the basin are subject to curtailment when USBR prorates the May 10, 1905, water rights. Water supply in the Yakima Basin is limited and overappropriated. Western portions of Kittitas County are experiencing rapid growth and new development in this area without mitigation for its impacts on the water supply negatively affect the flow of the Yakima River or its tributaries.
Statutory Authority for Adoption: RCW 90.54.050, 90.03.360, chapter 43.27A, 90.44 RCW.
Statute Being Implemented: RCW 90.54.050, 90.03.360, chapter 43.27A, 90.44 RCW.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: Department of ecology, governmental.
Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Mark Schuppe, Central Regional Office, (509) 454-4258.
A small business economic impact statement has been prepared under chapter 19.85 RCW.
The ground water code, chapter 90.44 RCW, is supplemental to chapter 90.03 RCW, which regulates the surface waters of the state. The legislature enacted the ground water code to extend the application of such surface water statutes to the appropriation and beneficial use of ground water within the state.
Ecology is developing and issuing this small business economic impact statement (SBEIS) as part of its rule adoption process and to meet chapter 19.85 RCW. Ecology intends to use the information in the SBEIS to ensure that the proposed rule is consistent with legislative policy.
The key elements of the proposed rule include:
• Mitigating all new ground water withdrawals.
• Measuring and reporting new ground water withdrawals.
Analysis of Compliance Costs for Washington Businesses:
We have assessed the impacts of the proposed rule by analyzing
and comparing water right management under the proposed rule,
in contrast to current practices. The current framework or
"baseline" includes the use of water by permit-exempt wells
(RCW 90.44.050) and any administrative procedures for
considering applications for both new water rights and changes
to existing water rights. Chapter 90.44 RCW is also part of
this legal baseline.
We provide a brief description of compliance requirements below.
Water Rights Administration under the Rule: The proposed rule sets the requirement for new uses of ground water, whether they require a permit or are permit-exempt, to be mitigated by an equal amount of consumptive use associated with a senior surface water right. To facilitate the process of obtaining mitigation, ecology has established the Upper Kittitas Water Exchange.1
For more detail on changes to water right administration, see the cost-benefit analysis.
Surface water: There are no changes under this rule to surface water right permit processing. In some cases, there may be expedited processing to place surface water rights into the trust water program. Ecology may also issue new surface water permits where trust water rights are held for mitigation purposes in the Yakima pilot water bank.
Ground water permits: Ecology may also issue new ground water permits when trust water rights are held for mitigation purposes in the Yakima pilot water bank. This cannot occur, absent case-by-case review, until ecology reaches a new agreement with the Yakima [Yakama] Nation and the USBR that replaces or amends the 1999 settlement agreement. Developers and new water users are required to provide mitigation prior to obtaining permission to use water, whether the proposed use requires a water right permit or is exempt from permitting. All new withdrawals within the upper Kittitas ground water area must meter.
Permit-exempt ground water: The proposed rule withdraws ground water from further appropriation. An exception is made for new withdrawals which are offset or mitigate their impact to the total water supply available through acquisition of a senior water right. Developers and new water users are required to provide mitigation prior to obtaining permission to use water, whether the proposed use requires a water right permit or is exempt from permitting. All new withdrawals within the upper Kittitas ground water area must meter.
Changes and transfers of water rights: Ecology will continue to process changes and transfers of existing water rights as allowed by chapters 90.03 and 90.44 RCW.
Impacts to Businesses in the Upper Kittitas Ground Water Area: Small businesses are not required to comply with the proposed rule. Businesses that locate in areas with established water rights are not required to comply with the rule. Businesses that are currently located in areas with established water rights are not required to comply with the rule. The proposed rule will not directly affect any existing water right holders or future businesses using an established water right.
Businesses that choose to locate a new operation outside a water service area may be affected by the proposed rule for the upper Kittitas ground water area. Those that are required to comply with the rule are only those seeking new water rights.
Impacts to Businesses Dependent on Residential Permit-exempt Wells: As stated above, the proposed rule does not directly affect current or future businesses that have or use established water rights.
Costs to Firms and Required Professional Services: As mentioned above, generally no business entities are required to comply with the proposed rule unless they seek a new water right. For those who require mitigation outside a current water right, they will likely need to employ or retain engineers, hydrogeologists, and possibly legal advice. The Upper Kittitas Water Exchange provides these services at a fixed mitigation cost.2
Reporting and Record Keeping: The proposed rule adds metering, reporting, and record-keeping requirements for small businesses using new ground water withdrawals.
Additional Professional Services: All additional professional services are included in the water exchange mitigation costs.
Equipment, Supplies, Labor, and Increased Administrative Costs: We expect small equipment, supplies, labor, and administrative costs in conjunction with the required meter installation and reporting.
Other Compliance Requirements: Ecology does not anticipate additional compliance requirements.
Quantification of Costs and Ratios: It is the purpose of this section to evaluate whether:
• The proposed rules could cause businesses to lose sales
or revenue.
• The proposed rules would have a disproportionate impact on small businesses.
Revenue Impacts: As noted previously, the rule only
affects new appropriators of ground water.
Distribution of Compliance Costs: Small businesses would have costs equal to the cost of acquiring mitigation. These businesses are required to comply with the rule if they would rely on a new appropriation of ground water. They could avoid these costs if they were to locate in an area with an existing water service, such as a municipal or public water supply system or an existing permit-exempt well.
Known Costs: Ecology has determined that this is a minor cost as defined in RCW 19.85.020(2). RCW 19.85.030 exempts ecology from needing to prepare a small business economic impact analysis.
The small costs to those required to comply with the proposed rule may impose disproportionate costs to small businesses.
Conclusions: The proposed rule requires only new consumptive uses of ground water to be mitigated by an equal amount of a senior surface water right. The rule affects only businesses that are seeking new appropriations of ground water. All currently established businesses using an established water right are not required to comply with the proposed rule. All new withdrawals within the upper Kittitas ground water area must meter.
Because no small businesses are required to comply with rule, ecology has determined that this is a minor cost as defined in RCW 19.85.020(2). RCW 19.85.030 exempts ecology from needing to prepare a small business economic impact analysis. Ecology prepares this analysis for informational purposes only.
Actions Taken to Reduce the Impact of the Rule on Small Business: Ecology proposed alternative forms of the rule now proposed. Cooperation with Kittitas County provided opportunities for the least impact on small businesses associated with land and real estate development. However, the attorney general in a formal opinion determined that ecology lacked authority for a rule in the form proposed in 2009. Consequently, this proposed rule follows the procedure specified in RCW 90.54.020 by withdrawing all unappropriated water while a ground water study is performed.
As noted above, it is unlikely that there will be significant adverse impacts on businesses (small or large) as part of this rule making versus the baseline. The additional costs incurred by new water users who are small businesses are matched with an equal value gained in the water right obtained for mitigation. Therefore, ecology took no specific measures to reduce or mitigate these rule impacts.
The Involvement of Small Business in the Development of the Proposed Rule Amendments: Ecology and Kittitas County entered into a memorandum of agreement calling for a study to better define the hydrogeology of upper Kittitas County. The study will provide information about water availability and the relationship between surface waters and ground water. Ecology will use the information from the study to develop long-term water management strategies.
The proposed rule withdraws all unappropriated ground water in upper Kittitas County. All new appropriations of water are required to provide mitigation in the form of a pre-May 10, 1905, water right in order to achieve "water budget neutrality," as defined in the proposed rule. Small business representatives, particularly those associated with land development and water well drilling, were involved in this public process.
The SIC Codes of Impacted Industries: The industries listed below may be required to comply with the proposed rule. The following list shows standard industrial codes (SIC)3 for small businesses that may be affected in complying with the rule. This serves as a representative sample of potential future businesses that may be affected.
| Deciduous tree fruits | Code 0175 |
| Fruit farming | Code 111339 |
| Horticulture nurseries | Code 1114 |
| Storage/packing agricultural produce | Code 1151 |
| Animal production | Code 115210 |
| Commercial greenhouses | Code 1114 |
| Hatcheries | Code 1129 |
| Mining, mineral extraction | Code 21 |
| Construction | Code 23 |
| Land subdivision and development | Code 2331 |
| Residential building construction | Code 2361 |
| Nonresidential building construction | Code 2362 |
| Land subdivision | Code 2372 |
| Manufacturing | Code 33 |
| Produce market | Code 445230 |
| Fresh fruits and vegetables | Code 5148 |
| Accommodation and food services | Code 722310 |
| Golf facility | Code 713910 |
| Stables | Code 713990 |
Impacts on Jobs: Current small businesses or those that are using a water right established before July 16, 2009, are not affected by this rule. Small businesses that decide they want a new water right may be affected. Ecology expects that these small businesses may rely on land use planning professionals (planners, architects, hydrogeologists, and engineers) to help prepare materials to show how their proposals meet the mitigation requirements described in the proposed rule. Small businesses may also rely on attorneys to develop the covenants that are required. Ecology expects little or no net job impacts to come from this proposed rule.
References: Huppert, Daniel, Gareth Green, William Beyers, Andrew Subkoviak, and Andrew Wenzl, Economics of Columbia River Initiative, 2004.
R.S. Means, Building Construction Cost Data, 55th Annual Edition, 1997.
1 http://www.ecy.wa.gov/programs/wr/cwp/wtrxchng.html.
2 Water exchange.
3 Ecology has used NAICS codes rather than SIC. It is a comparable system, used at the federal and state level, and has replaced SIC codes in common use.
A copy of the statement may be obtained by contacting Barbara Anderson, Water Resources Program, P.O. Box 47600, Olympia, WA 98504-7600, phone (360) 407-6607, fax (360) 407-6574, e-mail btov461@ecy.wa.gov.
A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Barbara Anderson, Water Resources Program, P.O. Box 47600, Olympia, WA 98504-7600, phone (360) 407-6607, fax (360) 407-6574, e-mail btov461@ecy.wa.gov.
June 20, 2010
Ted Sturdevant
Director
OTS-2843.3
UPPER KITTITAS GROUND WATER RULE
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In 1999, ecology imposed an administrative moratorium on issuing any ground water permits for new consumptive uses in the Yakima basin, which includes Kittitas County. That moratorium did not apply to permit-exempt withdrawals. In 2007, ecology received a petition seeking unconditional withdrawal of all unappropriated ground water in Kittitas County until enough is known about potential effects from new permit-exempt wells on senior water rights and stream flows. Ecology consulted with standing committees of the Washington state legislature on the petition and proposed withdrawal. Ecology rejected the proposed unconditional withdrawal, and instead signed a memorandum of agreement (MOA) with Kittitas County. Ecology proposed a rule in January 2009 and Kittitas County questioned ecology's authority for the proposed rule. Ecology later invoked the dispute resolution process under the MOA and the MOA was later terminated.
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"Applicant" includes the owner(s) of parcels that are the subject of a land use application, a person making a request for water budget neutral determination, or a person requesting a permit to appropriate public ground water.
"Common ownership" means any type or degree of legal or equitable property interest held by an applicant in any proximate parcel. Common ownership also includes a joint development arrangement between an applicant and any owner of a proximate parcel. A joint development arrangement is defined as involving significant voluntary joint activity and cooperation between the applicant and the owner(s) of one or more proximate parcels with respect to the development of parcels in question. Joint activity and cooperation that is customary or required by land use or other legal requirements does not itself constitute a joint development arrangement. A joint development arrangement may be evidenced by, but is not limited to, agreements for coordinated development and shared use of services or materials for permitting, design, engineering, architecture, plat or legal documents, financing, marketing, environmental review, clearing or preparing land, or construction (including road construction); covenants; agreements for common use of building materials, equipment, structures, facilities, lands, water, sewer, or other infrastructure.
"Consumptive use" of a proposed withdrawal is the total depletion that the withdrawal has on any affected surface water bodies.
"Ecology" means the department of ecology.
"Exemption" or "ground water exemption" means the exemption from the permit requirement for a withdrawal of ground water provided under RCW 90.44.050.
"Existing use of the ground water exemption" means a use of ground water under the authority of the exemption from permitting where water was:
(a) First regularly and beneficially used prior to July 16, 2009; and
(b) The water right is perfected within the five years following the first regular beneficial use for that purpose. Water to serve a parcel that is part of a group use begun within five years of the date water was first regularly and beneficially used on one or more parcels in the group is an existing use if the group use remains within the limit of the permit exemption.
"Group use" means use of the ground water exemption for two or more parcels. A group use includes use of the exemption for all parcels of a proposed development. It further includes use of the exemption for all parcels that are proximate and held in common ownership with a proposed new development. If a parcel that is part of a group use is later divided into multiple parcels more than five years following the first use, the new uses of the exemption on the resulting multiple parcels will be considered a separate group use distinct from the original group.
"Land use application" means an application to Kittitas County requesting a:
• Subdivision;
• Short subdivision;
• Large lot subdivision;
• Administrative or exempt segregation;
• Binding site plan; or
• Performance based cluster plat.
"New use of the ground water exemption" means a valid permit-exempt use of ground water begun on or after July 16, 2009. When an existing group use is expanded to serve a parcel in the future, the expanded use is a new use if it begins more than five years after the date water was first regularly and beneficially used for that purpose on any parcel in the group.
"Parcel" means any parcel, land, lot, tract or other unit of land.
"Proximate" means all parcels that have at least one of the following attributes:
• Share any common boundary; or
• Are separated only by roads, easements, or parcels in common ownership; or
• Are within five hundred feet of each other at the nearest point.
"Proximate shortplat" means a shortplat that would be considered a group use with another subdivision or shortplat.
"Regular beneficial use" means a use of water under the ground water permit exemption that is recurring or functioning at fixed, uniform, or normal intervals and is done in conformity with established usages, rules, or discipline.
"Total water supply available" means the amount of water available in any year from natural flow of the Yakima River, and its tributaries, from storage in the various government reservoirs on the Yakima watershed and from other sources, to supply the contract obligations of the United States to deliver water and to supply claimed rights to the use of water on the Yakima River, and its tributaries, heretofore recognized by the United States.
"Upper Kittitas County" is the area of Kittitas County delineated in WAC 173-539A-990.
"Water budget neutral project" means an appropriation or project where withdrawals of public ground water are proposed in exchange for placement of other water rights into the trust water right program that are at least equivalent to the amount of consumptive use.
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(a) Uses of ground water for a structure for which a building permit is granted and the building permit application vested prior to July 16, 2009; and
(b) Uses determined to be water budget neutral under WAC 173-539A-050.
(2) The exception for water used at structures provided in subsection (1)(a) of this section shall not apply or shall cease to apply if the structure is not completed and a water system that uses the new appropriation is not operable within the time allowed under the building permit. This shall not in any case exceed three years from the date the permit application vested. The exception is to avoid potential hardship and does not reflect ecology's view on when the priority date for a permit-exempt water right is established.
(3) Water to serve a parcel that is part of an existing group use is not a new appropriation or withdrawal if the water use to serve such parcel began within five years of the date water was first beneficially used on any parcel in the group, if the first use was prior to July 16, 2009, and the group use remains within the limit of the permit exemption.
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(2) As part of a permit application to appropriate public ground water or a request for a determination of water budget neutrality, applicants or requestors shall include the following information:
(a) Identification of one or more water rights that would be placed into the trust water right program to offset the consumptive use (as calculated pursuant to subsection (3) of this section) associated with the proposed new use of ground water;
(b) A site map;
(c) The area to be irrigated (in acres);
(d) A soil report, if proposed discharge is to a septic system and the applicant or requestor proposes to deviate from the values in subsection (3) of this section;
(e) A property covenant that prohibits trees or shrubs over the septic drain field; and
(f) A copy of the sewer utility agreement, if the proposed wastewater discharge is to a sanitary sewer system.
(3) Consumptive use will be calculated using the following assumptions: Thirty percent of domestic in-house use on a septic system is consumptively used; ninety percent of outdoor use is consumptively used; twenty percent of domestic in-house use treated through a wastewater treatment plant which discharges to surface water is consumptively used.
(4) Applications for public ground water or requests for a determination of water budget neutrality will be processed concurrent with trust water right applications necessary to achieve water budget neutrality, unless:
(a) A suitable trust water right is already held by the state in the trust water right program; and
(b) The applicant or requestor has executed an agreement to designate a portion of the trust water right for mitigation of the applicant's proposed use.
(5) Applications to appropriate public ground water or requests for determination of water budget neutrality that do not include the information listed in subsection (2) of this section will be rejected and returned to the applicant.
(6) To the extent that ecology determines that the mitigation offered would not reliably mitigate to be water budget neutral, ecology may deny the request or limit its approval to a lesser amount.
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(2) Ecology may expedite the processing of an application for a new water right or a request for a determination of water budget neutrality under Water Resources Program Procedures PRO-1000, Chapter One, including any amendments thereof, if the following requirements are met:
(a) The application or request must identify an existing trust water right or pending application to place a water right in trust, and such trust water right would have an equal or greater contribution to flow during the irrigation season, as measured on the Yakima River at Parker that would serve to mitigate the proposed use. This trust water right must have priority earlier than May 10, 1905, and be eligible to be used for instream flow protection and mitigation of out-of-priority uses.
(b) The proposed use on the new application or request must be for domestic, group domestic, lawn or noncommercial garden, municipal water supply, stock watering, or industrial purposes within the Yakima River Basin. The proposed use must be consistent with any agreement governing the use of the trust water right.
(3) If an application for a new water right or a request for a determination of water budget neutrality is eligible for expedited processing under subsection (2) of this section and is based upon one or more pending applications to place one or more water rights in trust, processing of the pending trust water right application(s) shall also be expedited.
(4) Upon determining that the application or request is eligible for expedited processing, ecology will do the following:
(a) Review the application or request to withdraw ground water to ensure that ground water is available from the aquifer without detriment or injury to existing rights, considering the mitigation offered.
(b) Condition the permit or determination to ensure that existing water rights, including instream flow water rights, are not impaired if the trust water right is from a different source or located downstream of the proposed diversion or withdrawal. The applicant or requestor also has the option to change their application to prevent the impairment. If impairment cannot be prevented, ecology must deny the permit or determination.
(c) Condition each permit or determination to ensure that the tie to the trust water right is clear, and to accurately reflect any limitations or constraints in the trust water right.
(d) Condition or otherwise require that the trust water right will serve as mitigation for impacts to "total water supply available."
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(2) For all other uses within upper Kittitas County that begin after November 25, 2009, including permit-exempt uses, a meter must be installed for each source well in compliance with such requirements as prescribed in WAC 173-173-100.
(3) Water users must collect and report metering data to ecology within thirty days of the end of each recording period. The following table shows the recording periods and the due dates for each metering report:
| Recording Period | Report Due No Later Than: |
| October 1 - March 31 | April 30 |
| April - June 30 | July 30 |
| July 1 - July 31 | August 30 |
| August 1 - August 31 | September 30 |
| September 1 - September 30 | October 30 |
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(2) When ecology finds that a violation of this rule has occurred, we shall first attempt to achieve voluntary compliance. One approach is to offer information and technical assistance to the person, in writing, identifying one or more means to legally carry out the person's purposes.
(3) To obtain compliance and enforce this chapter, ecology may impose such sanctions as suitable, including, but not limited to, issuing regulatory orders under RCW 43.27A.190 and imposing civil penalties under RCW 90.03.600.
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